Mayor & City Council of Baltimore v. De Palma

• Decision Date: 01 December 1920
• Docket Number: No. 10.,10.
• Citation: 112 A. 277
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE et al. v. DE PALMA.
• Court: Maryland Court of Appeals

112 A. 277

MAYOR AND CITY COUNCIL OF BALTIMORE et al.

v. DE PALMA.

No. 10.

Court of Appeals of Maryland.

Dec. 1, 1920.

Appeal from Superior Court of Baltimore City; Morris A. Soper, Judge. "To be officially reported."

Action by Luigi De Palma, by his father and next friend, Angelo De Palma, against the Mayor and City Council of Baltimore and another. From a judgment for plaintiff, defendants appeal. Reversed, without new trial.

Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ.

Charles W. Faine, of Baltimore (Bartlett, Poe & Claggett, of Baltimore, on the brief), for appellant Mattingly.

A. Walter Kraus, Asst. City Sol., of Baltimore (Roland R. Marchant, City Sol., and Edward F. Johnson, Asst. City Sol., both of Baltimore, on the brief), for appellant city his Baltimore.

William Curran, of Baltimore (Vincent L. Palmisano, of Baltimore, on the brief), for appellee.

THOMAS, J. This appeal is from a judgment recovered against the mayor and city council of Baltimore and Goddard J. Mattingly for injuries alleged to have been caused by the negligent and careless manner in which lumber was piled or placed by Mattingly on one of the piers owner by the mayor and city council of Baltimore.

The pier in question is Pier No. 6, and is known as a "lumber pier." It is located on Pratt street, which runs east and west; that is to say, it extends from Pratt street in a southerly direction about 1,500 feet into the river or harbor, and is from 75 to 100 feet wide. It is an uncovered concrete pile pier, designed and constructed for the use of merchants who need the use of a pier in their business, and in June, 1918, and for a number of years prior thereto, was devoted by the city principally or exclusively to the use of lumber merchants as a place to unload and store lumber. The surface of the pier was paved and was divided into sections, and the lumber was so placed or piled in those sections as to leave a driveway of irregular width in the center of the pier. This driveway extended from the Pratt street end to the southern or outer end of the pier and was wide enough for two vehicles to pass when employed in hauling the lumber. The lumber was stored on both sides of the driveway in piles from 7 to 10 feet high. These piles extended from the driveway to the edge of the pier, and the only way to get out on the pier was along this driveway. There were two shacks at the Pratt street end, one used by the clerks of the different lumber merchants and the other by Mr. Mattingly as an office, and there was a sign at the entrance of the pier, located in the center of the driveway, marked "Pier 6, Pratt Street." Space on the pier was leased to lumber merchants as a place to store their lumber, and was paid for by them according to the space occupied.

The pier was under the supervision and control of the chief harbor master of the city, whose duties were to enforce the harbor laws and regulations of the city, and to supervise the collection of charges for the use of municipal piers. According to his testimony, and the instructions issued by him, only those persons who leased space on Pier 6, and those who "had business relations with them," were allowed to go on that pier, and during the recent war, under the "government regulations," which were enforced as far as possible until after the signing of the Armistice, no one was allowed to go on the pier unless he had a pass. Special instructions had been given to the assistant harbor master having charge of Pier 6 to prohibit boys from going on the pier, and the police force of the city had been requested to assist in the enforcement of this regulation.

The plaintiff at the time of the accident was about 10 years of age, and had been, told by his mother never to go on Pier 6; that it was dangerous, and that he might fall in the water, or "some lumber might fall" on him. About half past 7 o'clock in the evening of June 3, 1918, he was asked by Miss Denneburg, a young girl about 20 years of age, if he knew where her brother David, a playmate of the plaintiff, was, and he took her out on the pier, where he thought he would find David and a number of other boys playing. According to his testimony, after he found David and the other boys on the pier between the piles of lumber, and pointed them out to David's sister, he started to go or run home, and as he was passing between the piles of lumber several boards fell on him, and he sustained, according to the testimony of the physician who attended him, a fracture of the left thigh. He had seen boys on one occasion climb on the piles of lumber, but did not see them on top of the pile that night, and did not know "whether they were up on the pile or not." The young girl who went on the pier with the plaintiff testified that they were on the pier at least 10 minutes before the accident happened; that the plaintiff did not climb up on the pile of lumber; that she did not see the boards fall, and could not tell whether they fell from the top or side of the pile; that she was between the piles of lumber, where she had gone to see if the boys were there; and that after she heard the plaintiff scream she found him under some boards.

Vincent Yamonico, a witness for the plaintiff, testified that he had been on Pier 6, had seen other persons go out on the pier and had seen boys fishing and swimming on the pier; that he went on the pier to see the boats; that he had seen lumber boats and launches tied up at the pier, but did not see any there on the day of the accident; and that the only way you could get to these boats was to go along the central driveway, and then between the piles of lumber, to the side of the pier where the boats were.

Vincent L. Palmisano, another witness for the plaintiff, who was also one of the plaintiff's counsel, testified that he had had occasion to go on Pier 6, "and to go on submarines that had landed on the west side of it"; that a great number of persons went to see the submarines while they were at the pier; that both sides of the pier were used for launches and boats, and that people landing from these boats would have to go through the lumber piles on the pier; that he went on the pier "out of idle curiosity," to see the submarines, and was not invited to do so by any city official. On cross-examination he said that the submarine Deutschland was at Pier 5, which was leased by the government, and that he did not know that any submarines came to Baltimore before the Armistice was signed in November, 1918.

In addition to the testimony of the chief harbor master, to which we have already referred, he further testified that lumber vessels were the only vessels that docked at Pier 6, and that passenger launches were not permitted at that pier; that when you look at Pier 6 from Pratt street you see nothing but wood; and that "there was no sidewalk down there." John S. Mister, an officer of the police force of the city, testified that for several years, including June, 1918, he was in charge of a post comprising Piers 4, 5, and 6; that Pier 6 was used for the storage of lumber; that he was on the pier from four to seven times a day, and that during the summer season, when the children were out of school, he was there more frequently than at other times, because he had trouble in keeping them off the pier; that they would sometimes go there to swim off the end of the pier; that he had arrested from 40 to 50; that he had instructions from the marshal and harbor master "to keep people off the pier that did not belong there," and that whenever he saw children on the pier he drove them off; that lumber boats landed at Pier 0, but that pleasure boats landed at Pier 4 and at the City Pier at the foot of Calvert street. The testimony of Mr. Mattingly and his manager, Albert H. Lee, as to the use of Pier 6, the class of persons who visited the pier, and the enforcement of the rule prohibiting children from going on the pier, was to the same effect as the testimony of the harbor master and the police officer.

The plaintiff called in rebuttal Mr. James F. Thrift, who was comptroller of the city at the time of the accident, and, when he was asked as to "his determination of the use to which any pier could be put," he replied, "Not exactly because some piers were specifically dedicated by ordinance to the storage of lumber," and that Pier 6 "was for the purpose of the storage of lumber, * * * and was known as a lumber pier." When asked, "Was not Pier 6 confined in its use exclusively to the lumber trade, and to persons having business in connection with the lumber trade?" he replied, "I think that is true; I do not recall any other use to which Pier 6 was put." When asked, "Do you know whether that was the only purpose that carried people to this pier?" he said, "I can only answer that by saying that I do not know of any reason anybody should not have gone on the pier, so long as he was not committing any nuisance or doing anything unlawful." On cross-examination he said "that Pier 6 was known as a lumber pier, but if boats came in there with commodities for merchants in the city they could unload over that pier upon payment of a wharfage or dockage charge; that it was not a playhouse; that it was not like the Broadway Recreation Pier; that it was a business place."

In the case of Maenner v. Carroll, 46 Md. 193, one of the counts in the declaration alleged that the defendants were the owners of an open and uninclosed lot within the limits of the city, and that persons were in the habit of passing over the same; that the defendants cut on said lot, "In a dangerous and exposed portion thereof," a deep excavation, and left the same in a dangerous condition, and liable to injure persons in passing over the lot, and that the plaintiff while passing over the lot at night, fell in said excavation and was injured. In holding this count bad on demurrer, Judge Alvey, speaking for ...